THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
CIVIL DIVISION
MISC. CAUSE NO.162 OF 2013
OKOTH MOSES :::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT
VERSUS
ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::::: RESPONDENT
BEFORE: HON. JUSTICE STEPHEN MUSOTA
RULING:
I
have perused the following applications:- 205/13, 50/13, 170/13,
20/13, 69/13, 195/13, 107/13, 78/13, 139/13, 111/13, 112/13,
197/13, 140/13, 23/13, 194/13, 79/13, 10/13, 18/13, 33/13, 204/13,
207/13, 34/13, 26/13, 76/13, 53/13, 77/13, 211/13, 183/13, 164/13,
143/13, 186/13, 162/13, 159/13, 157/13, 146/13, 141/13, 137/13,
115/13, 57/13, 58/13 and 61/13, the submissions by respective
counsel and the returns and found that something common runs
across the information in the Returns filed by the respondent and that
is, that the applicants were either charged with armed robbery and or
murder using fire arms a monopoly of the defence forces or being in
possession of fire arms, a monopoly of the defence forces. Some of
them are convicts while others were still on remand.
1
From the multiplicity of rulings I have been making I have held the
view and still hold the same view that such applicants are in lawful
custody since the General Court Martial has jurisdiction to try them in
view of the provisions of S. 119 of the UPDF Act. The whereabouts of
all the applicants is known since they are being kept in gazetted
detention centers. The General Court Martial derives its jurisdiction
from S. 197 (ii) and S. 119 (i), (h), (g) of the UPDF Act. If a civilian
brings himself/ herself under the jurisdiction of the General Court
Martial, he/she can be tried even if he/she is a civilian. This can occur
when they use or are found in possession of weapons, the monopoly
of the Defence Forces. (Hadijah Namugerwa case refers)
It should be noted that a right of habeas corpus is not automatic and
that whoever applies for it is given the order. The applicants have to
prove the purpose for the application i.e production of a person in an
unlawful detention to courts of law. Habeas corpus is not meant to
challenge the proceedings from which the applications originate.
Constitutionality of such proceedings can only be determined on
reference to the Constitutional Court since S 119 (i) (g) and (h) of the
UPDF Act has never been declared unconstitutional.
Whether the weapons are a monopoly of the defence forces is a
matter of evidence which cannot be determined by this court in these
proceedings. It is a triable issue. Whereas S. 119 (i) (g) and (h) does
not create an offence, it is an unusual section which brings civilians
2
under the ambit of the General Court Martial if found in possession of
not only fire arms but ammunitions the monopoly of the defence
forces. That law has never been repealed and is still effective and in
force regardless of the misgivings of the Human Rights advocates. All
the applicants listed above in the above applications are in lawful
custody and are not entitled to the prayers sought respectively. Those
still entitled may apply for bail before the court. Therefore the
applications as listed have no merit and they will be dismissed
respectively.
Stephen Musota
JUDGE
03.07.2014
3